MIGRATION - cancellation - Student (Temporary) (Class TU) visa - Subclass 500 (Student) - non-compliance with condition of visa - not enrolled in registered course - discretion to cancel visa - non-compliance conceded - change from online to in-class study - limited consultation for mental health and no approach to course provider - new enrolment in different subject area after receiving department's notice of intention - hardship if visa cancelled not significant - decision under review affirmed

Migration Act 1958 (Cth), s 116(1)(b), (1A)

Migration Regulations 1994 (Cth), r 2.43A, Schedule 8, condition 8202(2)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs made on 17 November 2023 to cancel the applicant's Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
2. The applicant is a national of Bangladesh born on [Date]. The visa that has been cancelled was granted on 16 June 2001 for a stay period until 12 July 2024. That visa was subject to condition 8202
3. On 23 September 2023 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from 7 July 2022. The applicant provided a written response to the NOICC. On 17 November 2023, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate's decision.
4. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.
5. The applicant appeared before the Tribunal on 20 May 2025 at 1.30pm to give evidence and present arguments. The applicant was represented by his registered migration agent. The representative attended the hearing.
6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant's visa should be affirmed.

1. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

1. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
   • be enrolled in a registered course, or in limited cases, a full-time course of study or training: 8202(2)
   • has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
   • has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
2. In the present case, the applicant's visa was cancelled on the basis the applicant was not enrolled in a registered course.
3. The applicant provided a copy of the delegate's decision to the Tribunal which indicates that he has not been enrolled in a registered course of study from 7 July 2022 until 26 September 2023.
4. In the written response to the NOICC it is not disputed that there is a breach of condition 8202(2).
5. The applicant in the hearing agreed with this period of non-enrolment.
6. There is nothing before the Tribunal to suggest that the applicant was a holder of a subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant's obligation under condition 8202(2) is to be enrolled in a registered course.
7. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

Consideration of the discretion to cancel the visa

1. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.
2. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department's Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder's control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.
3. For temporary visas other than criminal justice and enforcement visas, there are prescribed matters to which the decision-maker must have regard in determining whether they are satisfied as mentioned in s 116(1)(b): s 116(1A) and reg 2.43A of the Regulations. The prescribed matters are set out in the attachment to this decision.
4. The written submission in response to the NOICC indicates that the applicant was enrolled in a Bachelor of Business (Tourism Management) when the visa was granted. His purpose in Australia was solely to study. He was attending online classes due to COVID-19 restrictions. He lost track of his study when the mode changed from online to campus. Being away from home after the pandemic he felt severely homesick. He did not realise the consequence of the breach of condition 8202. He has fully complied with other visa conditions. Now the applicant is serious about his education and is seeking psychologist help to overcome the situation.
5. He has now enrolled in a Diploma of Information Technology and Graduate Diploma of Management Learning. Classes start from 9 October 2023. The applicant wants to return home on completing studies to make his parents proud. If the visa is cancelled it will cause depression for the applicant. The circumstances should be seen as an innocent mistake.
6. A report is provided dated 3 October 2023 from Dr Fayza Al Shamali, registered Psychologist. It refers an initial consultation with the applicant on the day the report was written. He presented with symptoms such as: low mood, loss of interest, anxious, low energy, low motivation, low self-esteem, hopelessness, constant headache, helplessness, lack of concentration and poor short-term memory. He suffers from homesickness and is socially isolated. He was not able to cope between online and off-line classes simultaneously. He wants to transfer to another university where he will do off-line study only. The opinion is provided that the applicant now has high motivation and dedication towards his study and the applicant will continue to see the psychologist on a regular basis. It is recommended that the applicant's visa not cancelled and for the applicant to follow-up with his mental health plan to improve his mental health and psychological well-being.
7. The applicant in the hearing indicated that he arrived in Australia in February 2022 and commenced the Bachelor of Business (Tourism Management). The applicant indicated that for three months because of COVID-19 classes were held remotely. The applicant indicated that he attended all classes online and progressed adequately with assignments. Later in the hearing the applicant referred to various mental health issues creating significant difficulties. The Tribunal sought to clarify from when these difficulties commenced given his earlier evidence that he progressed well with online learning. In response, the applicant was vague as to when these difficulties commenced but then referred to problems studying online.
8. The Tribunal asked the applicant to explain the difficulties at this point, the applicant indicated that he was receiving passing grades for all of his assignments and the like, but he wanted better for himself and was frustrated at not doing better in his studies, although he was passing.
9. The applicant indicated that in May 2022 classes recommenced on campus although the applicant did not attend classes. The applicant also indicated that he did not sit for exams.
10. When asked to explain why he did not sit exams or attend classes in person the applicant referred to frustrations because he was not getting better than pass marks. The Tribunal put to the applicant that it had difficulty accepting this as a possible explanation.
11. As it is, the applicant's written claims and statement from the psychologist are that the applicant has suffered mental health issues which have affected his study and ability following withdrawing from his course in enrolling in another registered course.
12. In this respect in the hearing the applicant indicated that in September 2022 he had two consultations with Dr Fayza Al Shamali, registered Psychologist who is the author of the report outlined above from October 2023. The applicant indicated that she discussed the process of seeking a deferral of studies based on his condition.
13. The Tribunal indicated to the applicant that if he was suffering from mental health issues creating difficulties for study or enrolment, he should have maintained enrolment and sought a deferral based on this mental health issues. The applicant indicated that although this course was recommended, he did not have the capacity to follow through with it.
14. The Tribunal noted to the applicant that the October 2023 report provided by Dr Al Shamali indicates one appointment only. The letter states that the applicant saw the psychologist on the day that the report was written for an initial psychological consultation.
15. As put to the applicant this cast doubt on claims by the applicant that he saw the psychologist on two occasions in September 2022. In response, the applicant indicated that the report is potentially worded this way because it is provided in response to the NOICC.
16. As put to the applicant, the Tribunal has difficulty accepting that if the psychologist had seen the applicant on two prior occasions approximately a year previously that this would not have been very relevant information to indicate in the report. The report indicating that the applicant on the day of the report was seen for an 'initial' consultation significantly undermines the applicant's claims that he saw the psychologist previously.
17. This casts some doubt on the applicant's credibility. However, it is not an issue that is overly material apart from, the applicant claiming that the psychiatrist alerted him in September 2022 to the option of a deferral of a registered course.
18. The applicant requested at the beginning of the hearing time to allow his parents to provide written statements seeking to corroborate the claimed difficulties faced by the applicant causing him the 14-month period of non-enrolment. The Tribunal queried with the applicant as to why such statements have not been previously provided.
19. With a degree of latitude, the Tribunal gave the applicant a period following the hearing for written statements from his parents to be provided. The Tribunal also asked the applicant to provide evidence of the claimed success in part in his units studied in the Bachelor of Business in early 2022.
20. The applicant provided no evidence after the hearing in the timeframe requested thereafter.
21. The Tribunal in the hearing indicated to the applicant that even accepting mental health issues suffered by the applicant it was hard to accept that they would justify or excuse not being enrolled in a registered course for a period as long as 14 months when there would have been the option for the applicant to seek a deferral on medical grounds and thus continuing to fulfil the requirement to be enrolled in a registered course but allowing time to deal with mental health issues.
22. In the context of the applicant having this option to seek a deferral based on health conditions the Tribunal is not satisfied that mental health conditions justify, or excuse not being enrolled. While the Tribunal may make some allowances for a lesser period of nonenrolment it does not accept extenuating circumstances beyond the applicant's control for approximately 14 months of nonenrolment.
23. Given the failure of the applicant to provide, as he indicated that he would, evidence of claimed initial study success in the Bachelor of Business (Tourism Management) the Tribunal is not satisfied that the applicant made any meaningful study progress in this course which is adverse to him in the exercise of the Tribunal's discretion.
24. The applicant indicated that if the visa is reinstated, he wishes to study a Bachelor of Information Technology which will be a three-year course. The applicant than intends to return to Bangladesh.
25. The Tribunal discussed in the hearing hardship that he would face if the visa remained cancelled. The applicant indicates that there will be upset from his family and community in Bangladesh as a result of him coming to an advanced economy, Australia, to study but making so little progress.
26. The applicant also agreed with the Tribunal when it put to him that presumably a key hardship would also be that he would be unable to progress with the Bachelor of Information Technology in Australia.
27. The applicant indicated that these were the key hardships.
28. The Tribunal accepts hardships claimed by the applicant not being able to progress with desired studies in Australia and having to return home without making meaningful study progress, causing upset by his family and social opprobrium.
29. The applicant indicated that there is no one whose visa would be cancelled consequential upon the cancellation of the applicant's. The applicant indicated that there are no children in Australia whose interests are affected by the cancellation. The applicant indicated that he does not fear persecution of significant harm on return to Bangladesh. The applicant made clear that while there would be difficulties because of social opprobrium as a result of his lack of progress in Australia, this would not rise to the level that the applicant would claim refugee status.
30. A relevant discretionary factor in reg 2.43A is whether there is evidence that the applicant was not compliant, or is no longer clicking to comply, with the purpose of the visa. For the period of not enrolment, in the absence of the applicant taking steps to seek a deferral on medical grounds, the Tribunal does not consider that the applicant has been compliant with the purpose of his visa which is to at least be enrolled in a registered course. The Tribunal is willing to accept that the applicant now has a genuine intention to study.
31. The Tribunal weighs discretionary factors.
32. Adverse to the applicant is that the Tribunal does not consider that there are extenuating circumstances beyond his control that explain his nonenrolment for as long as 14 months. Even accepting mental health difficulties suffered by the applicant, he should have maintained enrolment and sort a deferral to deal with mental health issues.
33. The Tribunal accepts the various hardships claimed by the applicant if he cannot undertake studies as he wishes in Australia.
34. The Tribunal is not satisfied that the hardship that would be suffered by the applicant or any other discretionary factor in his favour outweighs matters adverse to him, significantly him not being enrolled for a period as long as 14 months without there being extenuating circumstances beyond his control.
35. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

1. The Tribunal affirms the decision to cancel the applicant's Subclass 500 (Student) visa.

Representative for the Applicant: Mr Thong Ngoc Nguyen (MARN: 0322836)

ATTACHMENT - Extract from regs 2.43A and 2.43B of the Migration Regulations 1994 (Cth)**

2.43A Minister must have regard to certain matters in considering cancellation of certain temporary visas for breach of visa condition

(1) This regulation applies in relation to a visa if:

(a) the visa is a temporary visa other than:

(i) a criminal justice visa; or

(ii) an enforcement visa; and

(b) the Minister is satisfied that the visa holder has not complied with a particular condition (the relevant condition) to which the holder's visa is subject; and

(c) regulation 2.43B does not apply in relation to the visa.

(2) For the purposes of paragraph 116(1A)(a) of the Act, the Minister must have regard to the following matters in determining whether the Minister is satisfied as mentioned in paragraph 116(1)(b) of the Act:

(a) any written certificate issued by a certifying entity that is a government entity if the certificate:

(i) was issued in relation to the visa holder in respect of a workplace exploitation matter; and

(ii) sets out the matters agreed to by Immigration and the government entity;

(b) any written certificate issued by a certifying entity that is not a government entity and that states that the entity considers that:

(i) there is prima facie evidence that the visa holder has been affected by a workplace exploitation matter; and

(ii) if any law limits the time within which a proceeding may be instituted, or a complaint made, in relation to the workplace exploitation matter - that time has not expired; and

(iii) there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter by which the visa holder has been affected;

(c) whether there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter to which a certificate mentioned in paragraph (a) or (b) relates;

(d) whether there is any evidence that the visa holder was not complying, or is no longer seeking to comply, with the purpose of the visa;

(e) whether the visa holder has committed, in writing, to do both of the following:

(i) to take action, in a timely manner, to resolve the workplace exploitation matter to which a certificate mentioned in paragraph (a) or (b) relates;

(ii) to comply in future with the visa conditions to which the holder's visa is subject;

(f) whether the visa holder has failed to comply with a commitment of a kind mentioned in paragraph (e) of this subregulation, or paragraph 2.43B(2)(d), (3)(d) or (4)(d), that the visa holder has previously given in relation to the visa.

(3) Subregulation (2) does not limit, or otherwise affect, a power or duty of the Minister to cancel the visa under:

(a) paragraph 116(1)(b) of the Act for non compliance with a condition (other than the relevant condition) to which the visa holder's visa is subject; or

(b) a provision other than paragraph 116(1)(b) of the Act.

Note: For example, see subregulation 2.43(2) for the circumstances in which the Minister must cancel a visa.

2.43B Circumstances in which the Minister is not to cancel certain temporary visa for breach of restricted work condition

(1) This regulation applies in relation to a visa if:

(a) the visa is a temporary visa other than:

(i) a bridging visa; or

(ii) a criminal justice visa; or

(iii) an enforcement visa; and

(b) the visa is subject to a condition (the restricted work condition) restricting the work that the visa holder may do in Australia (other than a condition that prohibits the visa holder from engaging in any work in Australia); and

(c) the Minister is satisfied that the visa holder has not complied with the restricted work condition.

Certificate issued by a certifying entity that is a government entity

(2) For the purposes of subsection 116(2) of the Act, the Minister is not to cancel the visa under paragraph 116(1)(b) of the Act if all of the following circumstances exist:

(a) a certifying entity that is a government entity has issued a written certificate in relation to the visa holder in respect of a workplace exploitation matter that set outs the matters agreed to by Immigration and the government entity;

(b) the Minister is satisfied that there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the certificate relates;

(c) the Minister is satisfied that the visa holder will comply in future with the purpose of the visa;

(d) the visa holder has committed, in writing, to do both of the following:

(i) to take action, in a timely manner, to resolve the workplace exploitation matter to which the certificate relates;

(ii) to comply in future with the visa conditions to which the holder's visa is subject.

Certificate issued by a certifying entity that is not a government entity

(3) For the purposes of subsection 116(2) of the Act, the Minister is not to cancel the visa under paragraph 116(1)(b) of the Act if all of the following circumstances exist:

(a) a certifying entity that is not a government entity has issued a written certificate stating that the entity considers that:

(i) there is prima facie evidence that the visa holder is currently, or has been within the 12 month period preceding the issue of the certificate, the subject of a workplace exploitation matter; and

(ii) there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the visa holder is, or has been, subject;

(b) the Minister is satisfied that there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the visa holder is, or has been, subject;

(c) the Minister is satisfied that the visa holder will comply in future with the purpose of the visa;

(d) the visa holder has committed, in writing, to do both of the following:

(i) to take action to resolve the workplace exploitation matter in a timely manner;

(ii) to comply in future with the visa conditions to which the holder's visa is subject.

(4) For the purposes of subsection 116(2) of the Act, the Minister is not to cancel the visa under paragraph 116(1)(b) of the Act if all of the following circumstances exist:

(a) a certifying entity that is not a government entity has issued a written certificate stating that the entity considers that:

(i) there is prima facie evidence that the visa holder has been the subject of a workplace exploitation matter at a time that is more than 12 months before the issue of the certificate; and

(ii) there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the visa holder has been subject;

(b) the Minister is satisfied that:

(i) the workplace exploitation matter to which the visa holder has been subject is serious or systemic in nature; and

(ii) there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the visa holder has been subject;

(c) the Minister is satisfied that the visa holder will comply in future with the purpose of the visa;

(d) the visa holder has committed, in writing, to do both of the following:

(i) to take action to resolve the workplace exploitation matter in a timely manner;

(ii) to comply in future with the visa conditions to which the holder's visa is subject.

(5) Subregulations (2), (3) and (4) do not apply in relation to the visa if the Minister is satisfied that the visa holder has failed to comply with a written commitment of a kind mentioned in paragraph (2)(d), (3)(d) or (4)(d), or paragraph 2.43A(2)(e), that the visa holder has previously given in relation to the visa.

(6) Subregulations (2), (3) and (4) do not limit, or otherwise affect, a power or duty of the Minister to cancel the visa under:

(a) paragraph 116(1)(b) of the Act for non compliance with a condition (other than the restricted work condition) to which the visa holder's visa is subject; or

(b) a provision other than paragraph 116(1)(b) of the Act.

Note: For example, see subregulation 2.43(2) for the circumstances in which the Minister must cancel a visa.